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AUCIL
African Union Commission on International Law

Statement by the AUC Deputy Chairperson H.E. Kwesi Quartey at the 7th Forum of the African Union Commission on International Law

December 11, 2018

RESETTING AFRICA’S COMPASS FOR MANAGING
NATURAL RESOURCES IF AGENDA 2063 IS TO SUCCEED

Your Excellency, Professor Isata, Chair of this Forum,
Hon. Judge Ismael Hersi,
Distinguished Commissioners of AUCIL,
Ambassadors,
Colleagues,
Distinguished Ladies and Gentlemen,

I wish I could say that I am delighted to have been invited to this function as a Speaker. The truth is that the contrary is the case. My sister, Kathleen, literally imposed this on me at very short notice, and I was naïve enough to have given in without much reflection. I am neither an expert on this subject, nor have I had the opportunity give it much thought. My presentation, I am afraid risks being rather general for a topic which seems to me to require much greater expertise than I can claim to have.

Two of the known perceived underpinnings of the old International community as we have come to know it seem to be disappearing before our very eyes, to wit, sovereignty and territory as the engine of globalization grinds inexorably onwards towards an increasing interconnected global community.

The notion of sovereignty had always possessed a certain exclusive gravitas that is not reflected with as much certainty or authority as we had come to know it. It is within this context that our topic, “Resetting Africa’s compass for Managing Natural Resources if Agenda 2063 is to Succeed”, as appropriate but rather intriguing. What are natural resources? Are natural resources to be distinguished from human resources? Does possession of abundant natural resources assure prosperity? Our experience in this continent does not provide us with much assurance. How have all these nations been affected by the pace of globalization, where the most valuable resources seem to be knowledge and know-how?

You can imagine my discomfiture when I received this letter dated 30th November 2018 stating the subject: Invitation to the 7th Forum of the African Union Commission on International Law and the African Union Law. I have the honour to inform you that the African Union Commission of International Law is convening the 7th Edition of its Forum in Addis Ababa, from 10th to 11th December 2018. The selected theme of the 7th Edition of the Forum is The Management of Natural Resources in Africa.

The Forum will be organized around 5 sub-topics for experts to share the development of International law, Domestic Law and challenges in the field.

The objective of the Forum is to survey from a legal perspective how Africa has engaged and is continuously interacting with the Management of Natural Resources. Building on the broad lines of the African Union’s Agenda 2063, the 7th Forum of AUCIL will provide a unique opportunity to take stock of the role of International Law in the management of natural resources in Africa in order to examine the prospects of a revised legal order to attain the Agenda 2063 goals of commodity markets and new legal partnerships and exploration of natural resources.”

The letter went on:
“On behalf of the AUCIL, it is my honour to invite you to present the keynote address to the 7th AUCIL Forum on the following topic: “Resetting Africa’s Compass for Managing Natural Resources if the African Union Agenda 2063 is to Succeed.

“The proceedings of the Forum, including the paper presented, will be published in the upcoming AUCIL Journal. You are therefore to submit a paper of no longer than 10,000 words for the said publication that should be submitted no later than 30 days after the Forum.”

I immediately repented of my folly for allowing myself to be hoodwinked or perhaps ensnared into what appears with hindsight to have been a truly hazardous undertaking. I am neither a member of AUCIL, nor an academic. With respect to International Law, I can only claim a rather vague acquaintance with the subject from my days in the Legal and Consular Bureau of the Ghana Foreign Ministry. I only agreed to stand in for a speaker who is unable to show up, in spite of my very busy job as DCP. Nonetheless, I am delighted, well, not quite, should I say, constrained to participate in this most distinguished gathering and to make a few appropriate remarks in lieu of a keynote address. I believe it is in order, therefore, to congratulate the AUCIL for hosting this 7th Forum.

The history of Africa, our dear continent, spans the period before slavery, the transatlantic Slave Trade, Partition, Colonization, National Liberation, and now in the throes of the process towards continental integration and unity. I shall resist the temptation to make remarks on the transatlantic Slave Trade where our most precious natural and human resources were hunted down and driven, more correctly, shipped, into slavery. This took the greater part of four-plus decades, to be followed by subjugation, partition and colonization in a period marked by the Berlin Conference of 1884/85.

Now, Distinguished Colleagues, just what was the Berlin Conference about? Why has this whole sordid business appeared to be buried under the carpet? The fact that the Berlin Conference has been largely neglected by historians appears to justify the publication “Bismarck, Europe and Africa – The Berlin Africa Conference 1884/85 and the Onset of Partition” edited by Stig Foster, Wolfgang J. Mommen and Ronald Robinson. The proceedings published into a book arose out of a series of seminars published by the German Historical Institute by Oxford Unity Press (1988).

We are, or rather, should be seeking a greater understanding of the significance and consequences of this event. If, as we say, that we in Africa are seeking integration and unity in accordance with the vision of Agenda 2063, then we are acknowledging per force of logic that we have become, for one reason or another, less than integral. It behoves us to examine this matter a little more closely. The significance of this Conference on Partition may go beyond the field of traditional diplomatic history and the history of international relations and, indeed, International Law.

This may have the potential to contribute to a higher degree of understanding about the history of European expansion which has so deeply affected both African and European societies. The Berlin Conference was also about the Congo and the creation of the Congo Free State (1882-1885). Listening to King Leopold II who, together with Bismarck, organized the Berlin Conference, can be as revealing and educative as it can be infuriating and unnerving.
“Nous devons etre a la fois prudent, habiles et prompt à agir, afin de nous procurer une part de ce magnifique gateau Africain.” Roughly translated, King Leopold was saying “we must be careful, skillful and ready to act – in order to get a slice of this magnificent African cake”.

In his article on the Conference of Berlin and the future of Africa (1884/85), Professor Ronald Robinson had this to say: “Just over a century ago in Berlin the powers of three continents made so bold as to plan the destiny of another. Interrupting their dynastic intrigues, skating parties and court balls on a Saturday in November 1994, the plenipotentiaries of Europe and the United States met in the Reich Chancellery, as if to decide the future in much of tropical Africa, where few Europeans set foot and unconsulted Africans still ruled.

At Berlin, the free trade treaty and the bilateral territorial agreements over the Congo and Niger Rivers were deeply conditioned the one on the other.

The intervention of the European concert had been so arranged by Bismarck that the interested parties had to subscribe to free trade before their claims could be generally accepted; and their claims had to be satisfied to some extent before claimants would subscribe to the free trade treaty.

The interdependence of the two sides to the bargain held the key to the paradox of a conference which founded a free trade regime on an exclusive partition of territory.

The Collective Act signified a consensus of international interests in equal access to the Congo and Niger rivers which suggest a commercial and anti-colonial interpretation of the proceedings; whereas the Unilateral Agreements represented compromises between competing national associations and claims which suggest a territorial and proto-colonial meaning. The ambivalence between the two sides of the bargain is reflected in the riddle of alternative half-truths in the historiography.

Emphasizing one side or the other, it is possible to argue either that partition was a necessary means to free trade, or that the free trade was redone for territorial acquisitions. It has been debated whether the petitioners meant the partition to avert the liability or to prepare the way for colonial possessions. It has even been held that the Conference did not in fact partition Africa or prepare the way colonial possessions, but merely decided free trade obligations among European Governments. Given that the free trade treaty obligations and the territorial arrangements were interdependent, nether the simple commercial nor the simple colonial view can be more than half-time of the intentions of any power, still less of the Conference as a whole. The whole truth is mixed up in the interdependence of multilateral and bilateral decisions. But the riddle remains. Did free trade require partition or did partition pay lip service to free trade?

If the Conference is to make sense, a balance of judgement has to be struck over certain ambiguities in the proceedings; one is the sincerity or disingenuousness of the treaty; another is its feasibility or futility in Africa, and the last is the colonial or anti-colonial intent of the particulars.

On balance, the Treaty is interpreted as a genuine attempt to internationalize future trade in Central Africa.

That the powers invented a Congo State to take the lion’s share of territory says little for their colonial ambition but a great deal for their free trading zeal. Of all the easy assurances on offer in Berlin, a hypothetical Congo State was the cheapest; it gave every delegate something to take home. The possibility is therefore that all the powers genuinely subscribed to a free trade treaty which promised to work to the national advantage of each in the greater part of the area in question. Such a judgement would dispense of the paradox of protectionist governments adopting African free trade.

CHARTERED COMPANIES AND THE TRANSITION FROM
INFORMAL SWAY TO COLONIAL RULE IN AFRICA

Chartered Companies have, in the long history of European overseas colonization, played the prominent role in the initial acquisition and control of overseas territories.

The use of joint stock companies, incorporated by Royal Charter, given powers of colonization, was a natural step by which the late feudal monarchies could modernize expansion overseas. The Dutch East and West Indies Companies laid the basis for New Amsterdam (New York), the Dutch empire in the Caribbean, and the attempt to take Brazil, for the settlement in South Africa, the slave trading posts in West Africa, control of Ceylon and the vast enterprise in Indonesia. British North America was founded in the histories of the Massachusetts Bay Company which laid claim to the Canadian West. Britain’s Asian Empire was also essentially the result of the activities of the East India Company.

CHRISTIAN MISSIONARY ACTIVITY IN THE AGE OF
IMPERIALISM AND THE BERLIN CONFERENCE 1884/85

According to Professor Horst Grunden, for centuries, Christian missionary work and the European colonial conquest were closely related.

Their interlocking relationship underlines with particular clarity the continuity and unity of western colonial history. This connection existed in the modern history of black Africa as well as elsewhere. Long before the “scramble” itself began, missionaries had followed explorers, traders and merchants, which missionaries, for their part had forged trading relations.
As a result, the new age of exploration that began in the 1860s, especially in the interior of Africa, gave a strong impetus to missionary activity.

The accounts of explorers and travelers provided missions with some of the most popular reading matter and stimulated the strategic plans to governing boards.

The protestant world took it as its model, the researcher, ethnographer and missionary, David Livingstone (1813-71) who had developed a programme of “Commerce and Christianity” for Africa. His maxim was that the most important instrument for “pacifying” and “developing” Africa were legitimate trade and Christianity. What then was the significance of the Berlin Conference? What role did it play in the partition?

The Berlin Conference partitioned Africa. It drew the boundaries of the various European possession. As Kwame Nkrumah put it in the Challenge of the Congo, “the original carve up of Africa was arranged at the Berlin Conference in 1884.”

Politically speaking, the role of the Berlin Conference was to draw attention to the fact of partition and to legitimize it. Historically speaking, Berlin represents the partition in symbolic form.

THE RESULTS OF THE BERLIN WEST AFRICA CONFERENCE
AN ASSESSMENT BY G.N. UZOIGWE

In the view of Prof. Uzoigwe, the Berlin Africa Conference was a landmark in world history. Never before, the history of mankind, had a concert of one continent gathered together to plan how to share out another continent without the knowledge nor the consent of the latter’s leaders, let alone their people.

The Berlin Act was therefore not a legal instrument; it was a political and an economic instrument. Africa was not uninhabited. The Europeans were aware of that fact. Their dealings with African leaders prior to Berlin especially in relation to treaty making, had recognized that the Africans possessed sovereignty. “Far from being a landmark in International law, the Berlin Act was yet another landmark in positive law, which sees force as the basis of all law. As far as the imperialists were concerned, the African states lacked credible military power strong enough to stop them. The Berlin Conference simply re-emphasized the well-known doctrine of Plato’s Thracymachus that right is the protector of the interest of the stronger.

“In 18th century, Europe was militarily stronger than Africa and 19th century European imperialism was a function of force used against Africans but only threatened to be used against themselves.”

As to why nineteenth century Europeans should arrogate to themselves the right to seize other peoples’ lands, the international lawyer, John Westlake (International Law, Cambridge 1894) had this to say:

“The inflow of the white race cannot be stopped where there is land to cultivate, or to be minded, commence to be developed, sport to enjoy, curiosity to be satisfied. If any fanatical admirer of savage life argued that whites ought to be kept out, he would only be driven by the same conclusion by another route, for a government on the spot would be necessary to keep them out.

Accordingly, International Law has to treat natives as uncivilized. It regulates, for the mutual benefit of civilized states, the claims which they make to sovereignty over the region and leaves the treatment of the natives to the conscience of the state to which sovereignty is awarded, rather than sanction their interest being made an excuse for war between civilized claimants, devastating the region and the cause of suffering for the natives themselves”

The Berlin Act had the effect of partitioning Africa on paper. It was not the Conference’s initial intention to engage in a general partition of Africa. But it ended up, nevertheless, appropriating territory and laying claim to “the rules to be observed in future” for further partition and conquest. For example, the Conference recognized the Congo Free State; it endorsed the doctrine of the hinterland, spheres of influence, and effective occupation. By so doing, it laid down the broad lines for the partition on paper.

In the final analysis, the Berlin Conference was a European Economic Summit Conference. After the rhetoric of the humanitarian initiatives, the slave trade and the “civilization” of Africa are erased from the Berlin Act, what is left are naked economic motives – “the development of trade; the elimination of trade monopolies, free navigation and avoidance of disputes which might arise from new acts of occupation”. The major deliberations of the Conference centres around these issues. Contemporary African opinion in no doubt as to what the Conference was about. According to the Lagos Observer, 19th February 1885, “The world had, perhaps never witnessed a robbery on so large a scale. Africa is helpless to prevent it. It is on the record that “Christian” business can only end, at no distant date, in the annihilation of the natives.”

In 1891, another edition of a Lagos newspaper, reflecting on the legacy of Berlin, wrote linking the partition with Slave Trade: “A forcible possession of our land has taken the place of a forcible possession of our person.”

For Africa, the Berlin Conference initiated the process of formal colonialism, and thus ushered in a generation of wars, instability and revolutionary change. The idea of formal colonialism is embodied in what is known as the Third Basis of the Berlin Act. The practical application of the Third Basis not only influenced the final partition and conquest of Africa, but also led to the transformation of Africa. The Third Basis enunciated two important doctrines.

Article 34 (Berlin Act)
“Any power which henceforth takes possession of a tract of land on the coast of the African continent outside of its present possessions, or which, being hitherto without such possessions, shall acquire them, as well as the powers which assume protectorate there, shall accompany the respective act with a notification thereof, addressed to any other signatory powers of the present act in order to enable them, if need be, to make good any claims thereon.”

Article 35
The signatory powers of the present Act recognize the obligation to insure the establishment of authority in regions occupied by them on the coasts of the African continent sufficient to protect existing rights and, as the case may be, freedom of trade and of transit under the condition agreed upon.”

Embedded in these articles are the famous doctrines of:
Sphere of influence
Hinterland, and
Effective occupation.

The notion of the sphere of influence became the first stage in the occupation of African territory. If a claim of sphere of influence is properly notified, it quietly became a sovereign right. This is how Italy annexed Tripoli (1911-1912). As the then US Secretary of State put it in 1896, “the notion was unknown to International Law, and does not as yet rest upon any recognized principle of International or Municipal Law.”

After the Europeans had carved up the continent, they proceeded to establish functional colonial administration and in the process came face to face with the second result of the Berlin Act – the competing forces of Pan-Africanism, ethnicity and nationalism.

The Pan-African idea as a modern notion, is a major result of the Berlin Conference. What the Berlin Conference and the subsequent scramble for Africa did was to persuade a few perceptive black intellectuals and revolutionaries of the African diaspora to come together and to ponder the future of the black race – and thus was Pan-Africanism born.

Thank you for your kind and polite attention.

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